Monday, October 26, 2009

Debate continues over timing of Perry v. Schwarzenneger

At the October 14th hearing to review the motion, Judge Walker asked Charles Cooper, attorney for the official Prop. 8 proponents, how gay marriage would harm married heterosexuals. Cooper conceded that he could identify no harm, a concession that appears to support the plaintiffs' constitutional challenge. Walker also gave Cooper a counterexample to proponents' claim that procreation provides an important reason why the state limit marriages to heterosexuals: Walker had recently married an elderly couple. Cooper acknowledge that Walker was not "missing something" about the "procreation" claim.

Nevertheless, the tea leaves do not auger well for plaintiffs and gay and lesbian couples who hope that the Perry case will overturn state bans on same-sex marriage. Debate continues over whether the case was appropriately timed, given the unlikelihood of a 5-4 decision by the U.S. Supreme Court to overturn these bans.

“We do think it's early to be doing federal litigation, but we do not disagree with the legal theory,” said Jennifer C. Pizer, senior counsel and marriage project director for Lambda Legal in Los Angeles. “There are different views about the timing of the suit.”

10/26/09 NY Times:Andrew Koppelman, a law professor at Northwestern and the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,” said [plaintiffs' attorney Theodore] Olson will have trouble attracting votes from the current justices. Asked how many justices Mr. Olson could count on, Professor Koppelman said, “I have trouble getting to one.”

See also this letter to the Times by Eva Wolfson, executive director of Freedom to Marry.